SZR v Blackburn with Darwen Borough Council

Hearing date: 13 February 2024

Approved Judgment

This judgment was handed down remotely at 2pm on 15 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Claimant is a 24-year-old woman, who has autism, attention deficit hyperactivity disorder (“ADHD”) and learning difficulties. She gives instructions by the Official Solicitor. The Defendant is the local authority in whose care she was placed on 13 July 2018.

By a claim issued on 8 October 2021, the Claimant brings proceedings under section 6 of the Human Rights Act 1998 (“the HRA”) for a violation of her rights under Articles 3 and 8 of the European Convention on Human Rights. These are, respectively, the right to protection from torture, inhuman or degrading treatment and the right to respect for private and family life.

The Claimant's case is that she suffered serious neglect over a period of several years while being cared for by her mother. She contends that while the Defendant's professionals were involved with her family at various points from April 2012, effective action was only taken shortly after the adult social care team became involved after her 18 ^th birthday in September 2017; and that the Defendant's failure to take earlier action violated its positive obligations to protect her under Articles 3 and 8.

By an application dated 4 April 2023 the Defendant sought summary judgment on the Claimant's claim under CPR 24.2; or alternatively an order to strike out the claim under CPR 3.4(2)(a). This is my judgment on that application, which was heard on 13 February 2024. I was greatly assisted by the written and oral submissions from both counsel.

The Claimant's claim

The Claimant was born in 1999. She is the oldest child of her mother, and she has one sister who is four years younger. Both children lived with their mother in housing association property in Blackburn. The Claimant attended a Special School under a Statement of Special Educational Needs which was made in September 2004.

Her claim focusses on the Defendant's involvement with her family over three key periods: (i) towards the end of 2013; (ii) between March and October 2014; and (iii) between April 2016 and December 2017. During each of these periods it is said that there were numerous occasions on which protective action by the Defendant was warranted.

She relies on the obligation, in certain well-defined circumstances, to take operational measures to protect specific individuals against a risk of treatment contrary to Article 3. It arises where the authority “knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the…acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid the risk”: X v Bulgaria (2021) 50 BHRC 244 at [178] and [184], cited in AB v Worcestershire County Council and Birmingham City Council [2023] EWCA Civ 529, [2023] 2 FLR 795 at [13]–[14] and [56].

The Claimant contends that at all material times the Defendant was, or ought to have been, aware of a real and immediate risk of her suffering inhumane and degrading treatment of a severity that engaged Article 3. She places reliance in particular on the following matters, considered cumulatively:

“(a) The Claimant was extremely vulnerable, not only by reason of her age, but also by reason of her learning disability and autism.

(b) By the time of its intervention in 2013 the Defendant was aware of a real risk that, absent support, the Claimant was a particularly vulnerable child who would be exposed to the picture of neglect observed by the ambulance service in March 2013 and by the Defendant shortly thereafter including:

i. An “extremely dirty house” which was “smelling of urine” and had a significant build up of rubbish in every room;

ii. The Claimant and her sister being poorly clothed and “walking around in the filth with nothing on their feet”;

iii. The Claimant, aged 13, without underwear and visibly “playing with herself” without any intervention or understanding of appropriate boundaries being imparted by the mother;

iv. Limited access to education;

v. The family being entirely isolated;

vi. The Claimant having an untreated injury to her ankle that was causing her to limp;

vii. Parenting of a mother which was severely restricted by the mother's own learning difficulty, misuse of alcohol and poor mental health.

(c) Further, the Defendant as a social services department, would have been aware of the likely profound implications upon the development of the Claimant were she to remain living in such an environment.

(d) All of those concerns arose a fortiori on the subsequent occasions of the Defendant's involvements, and as it became clearer that the Claimant was suffering profound and prolonged neglect. The picture of neglect included dirty and inadequate clothing, poor diet, limited social contact, limited access to education, poor personal hygiene and infestation with [nits], [an] extremely dirty home environment, neglect of her emotional and behavioural development, and neglect of her medical needs.

(e) Ultimately, the Claimant, as an extremely vulnerable learning disabled child, was left for years in living conditions that were predominantly characterised by squalor, and her needs were so neglected that she ultimately remained isolated in her home, with no socialisation, and keeping professionals away by arming herself with a pole. She was smelly and infested with nits to the extent they drop from her head. That was inhumane and degrading”: Particulars of Claim (“POC”) at [24].

She claims that the combined effect of the real and immediate risk of inhumane and degrading treatment as set out at [24], the extent of her vulnerability as a child, the nature of the risk (being one that warrants protection from the State) and the fact that the Defendant has been afforded by Parliament the necessary compulsory powers to intervene and protect her generated the Article 3 operational duty: POC at [25].

She argues that for the same reasons, the Defendant owed her an operational duty under Article 8, because the harm being suffered violated her family and private life: POC at [26].

She asserts that the Defendant acted unlawfully and in breach of the obligations arising under Articles 3 and/or 8 by failing to take reasonable preventative measures as follows:

“(a) By the end of 2013 the Defendant should have sought legal advice with a view to removing the Claimant from her home. There had been two significant periods of social care involvement with clear indications that the mother would not be able to sustain sufficient positive change in her parenting, and thus continuing to expose the Claimant to severe neglect with profound impacts upon the Claimant's development. Although some recognisable changes had been made to the home conditions, there remained serious concerns as to the mother's ability to meet the Claimant's physical and emotional care needs. The extent of the Defendant's engagement with and monitoring of the Claimant throughout its involvement in 2013 was limited and inadequate. The Defendant's immediate closure of the case upon receiving a referral in December 2013 regarding the mother drinking alcohol to excess, being abusive, and telling the social worker to “take the children away”, was inadequate.

(b) In the course of the third period of the Defendant's involvement, between March and October 2014, the Defendant again failed to take steps towards removing the Claimant from her mother's care. Serious concerns as to neglect of the Claimant had again resurfaced and there was no reasonable basis to consider that a third period repeating the same or similar support would result in any different outcome and the mother being able to sustain positive change. The child and family assessment of 11th June 2014 was inadequate in failing to identify child protection concerns. The closure of the case in October 2014 left the Claimant in a neglectful home where there was no overall, coordinated plan to address her complex needs.

(c) On 26th April 2016, and following the Claimant being placed in police protection, the Defendant failed to then act decisively and commence court proceeding to permanently remove the Claimant from her mother's care. The Claimant had experienced neglect for a number of years and it was abundantly clear that the mother was unable to maintain any substantial improvements.

(d) There were any number of occasions throughout the remainder of 2016 and 2017 during which the response of the authority was inadequate in failing to commence care proceedings or Court of Protection proceedings. That the Claimant was suffering severe neglect, and that the Claimant's mother was unable to meet her needs or sustain sufficient positive change, was manifest. There was no basis to consider that further support, which had already been provided on various occasions since 2012, would result in any different an outcome. Ultimately, by June 2017 the school was left complaining that there had been no progress towards care proceedings notwithstanding the Claimant's “basic needs [being] persistently neglected” and the chair of the review conference exclaiming that “this has got to...